Imagining A Commons-Based Music Business

These past few weeks I’ve been heads down writing up case studies of organizations and businesses across all sectors who have Creative Commons based open business models.

One of the great things about working at Creative Commons is the way my colleagues track and share news related to the work we do. Over the past few weeks music industry news and events have been most thought provoking. I thought I’d use this post to essentially think out loud about how music might work in a commons-based model.

Let me say up front that this is exploratory, out-of-the-box thinking. The start of taking learnings and approaches from the case studies I’m writing about and imagining how they might apply to the music industry. This is not some carefully thought through magic solution but rather an effort at using a few news stories to describe the current state of music as a business and then break free of the current industry model and define how a commons-based alternative might start from with a different set of principles while still generating a livelihood for musicians. Here are recent news items, stories, and initiatives I’m going to draw on:

This past week 160 artists and record labels signed a petition calling for a reform of the Digital Millennium Copyright Act (DMCA).

Here’s a copy of the actual petition:

Its a bit hard to read the small print so I’ve transcribed:

Dear Congress:

The Digital Millennium Copyright Act is broken and no longer works for creators.

As songwriters and artists who are a vital contributing force to the U.S. and to American exports around the world, we are writing to express our concern about the ability of the next generation of creators to earn a living. The existing laws threaten the continued viability of songwriters and recording artists to survive from the creation of music. Aspiring creators shouldn’t have to decide between making music and making a living. Please protect them.

One of the biggest problems confronting songwriters and recording artists today is the Digital Millennium Copyright Act (DMCA). This law was written and passed in an era that is technologically out-of-date compared to the era in which we live. It has allowed tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smartphone, while songwriters’ and artists’ earnings continue to diminish. Music consumption has skyrocketed, but the monies earned by individual writers and artists for that consumption has plummeted.

The DMCA simply doesn’t work. It’s impossible for tens of thousands of individual songwriters and artists to muster the resources necessary to comply with its application. The tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago. We ask you to enact sensible reform that balances the interests with creators with the interests of the companies who exploit music for their financial enrichment. Its only then consumers will truly benefit.

In my work at Creative Commons and the work around open business models I’m very much interested in seeing business models and economic approaches that reward creators. Earning a livelihood as a musician or creator of any type has gotten more difficult. In a digital age where copying is near $0 I’m looking for the artist to get a very large percent of every sale.

Historically creators have relied on intermediaries to represent them and distribute/sell their creations. These middle intermediary organizations (labels, collecting societies, and now tech companies) have often made riches off the work of creators sometimes at the expense of creators themselves. So I’m all for the artists calling this out and pushing for DMCA Reform that better protects their ability to have a livelihood. Artists themselves ought to be the primary beneficiaries of their work.

how is revenue split between the platform and the artist? I’m looking for higher splits to artists.

how is the split calculated? I’m looking for a deal that fairly acknowledges the value platform, artists, and users generate.

how does the platform factor Creative Commons into their business model? I’m looking for a key differentiation strategy.

how much is this about platform valuation and monetization, vs. advancement of creative culture, artists, public access, and the music community? I’m looking for the latter.

The details are so sparse with SoundCloud Go that I don’t get a sense of any answers.

I’m also interested in how SoundCloud Go compares with Spotify, Apple, Google, Tidal, Rhapsody, and other music subscription services on the basis of those questions. One of the things most frustrating is how opaque the actual business models are. There is very little transparency.

“How does the money get paid to labels and artists?If the licensee has not cut a direct deal with the copyright owners, it can get a compulsory licenses which comes with a statutory rate as determined by the CRB judges and is paid to SoundExchange, an agency set up to administer payments. Those payments are split as follows: 50 percent to the master rights owner, which are typically record labels; 45 percent to the artist that recorded the music; and 5 percent to musicians, via their unions.”

Notice how 50 percent typically goes to the record label and how labels are typically the rights owner — not the artist.

I find it a bit hypocritical that labels, who have a long history of exploiting creators, are also signatories to this DMCA Reform petition. It seems to me they themselves are examples of “companies who exploit music for financial enrichment.”

I’ve been reading with great interest about British singer and songwriter Imogen Heap who as described here “is building what she calls a “fair trade” music industry that aims to sidestep middlemen like iTunes and Spotify and give musicians more ownership over the money and data produced by their work.”

I like the way her system makes the distribution of revenue completely transparent. Click on the Licensing tab on the site where her song Tiny Human is made available and view the Policies. Splits are transparent and the system flows the revenue directly through to all the musicians involved. I’m especially interested in the way she’s using blockchain to enhance creator autonomy and control over her works, including financial compensation, without the current reliance on third party intermediaries.

As I read all these stories I find myself thinking that everyone is still very much bought in to the idea that music is a commodity, a form of property, consumed by music listeners. This is how our current economy works, but as we’ve seen it results in inequity and siloed distribution of wealth. It anonymizes the relationship between creator and consumer. Rather than tweak this model I find myself wondering, “What might a commons-based solution to the current music industry might look like?”

Here’s a few thoughts on how commons-based thinking might change the model.

The second last sentence in the DMCA petition says, “We ask you to enact sensible reform that balances the interests of creators with the interests of companies who exploit music for their financial enrichment.” Notice how the interests of the public and music listeners are excluded. A commons based model would actually seek to balance the needs of the creators with the needs of listeners and the public.

I know in theory that government and copyright law is intended to act on the publics behalf while ensuring appropriate means of livelihood for the creator. But as this petition so aptly points out the current copyright law fails to do so and copyright legislation and its reform have increasingly been in the interests of “companies who exploit music for their financial enrichment” not in the interests of the creator or the public.

Copyright is based on the idea of personal ownership and property rather than communal shared resources. A commons based approach would see music not as the unilateral fixed work of a single artist but rather as a collaborative work that draws on all music that came before it and evolves through public use, enhancement, and innovation. More listeners, more use, more derivative works, these would not be seen as piracy but as positives.

A commons based approach is reciprocal. While others may use your works the same is true for you — you are free to build your music by innovating and making derivatives of others music. It’s a two-way street.

I really like the way theatre group Howlround, a knowledge commons by and for the theatre community expresses it. “A commons is a place to share the resources you have and take the resources you need. We believe that making art is more than a money game, that ticket sales for a live performance are just one piece of what it takes to claim success in our art form. Access and engagement are our highest values, and everyone, yes everyone, has something to contribute to the learning, the making, and the sharing of art.” Similar to Howlround a commons based approach to music would aim for access, engagement, and mass participation.

A commons based model would embrace the benefits of network effects where every use of the resource generates value not just for the creator but for everyone. A commons-based model would enable and celebrate remix as an integral form of creative expression and innovation, something that generates value to the original creator as well as the public.

A commons-based model for music would fully utilize digital affordances in a fair way. Today music exists in digital form. It is non-rivalrous and non-depletable. If I give you a digital copy of a song I have I still have the song. Digital based resources can be copied, shared, distributed and used at costs which approach zero dollars and at a scale that makes them increasingly accessible to the entire world. Rather than creating artificial scarcity by applying property and copyright law, a commons-based model would accept and build on digital attributes as strengths not weaknesses. The aim is not to curb abundance but to enable abundance.

The DMCA petition treats music as a commodity — an “export” as it says in the opening sentence. In a commons based model music would be seen as more than a commercial transaction. It would be seen as a social interaction involving the artist building community and working together to ensure livelihood and communal use. The public isn’t just a consumer of music — a passive music listener. Music is integral to our lives — we sing along with songs, we learn to play them ourselves, songs get associated with key life events, … Songs quickly enter personal and societal culture where they evolve in ways that advance the field of music. A commons based model would acknowledge and recognize this value. In a commons based model music is a shared resource managed by a community.

A commons based approach to music emphasizes relationship. The current music industry largely severs that relationship. In the current model music is a commodity purchased anonymously. But fans know that a digital copy of the song costs the industry close to $0. They also know that the majority of whatever they pay for a song does not go to the artist but to third party intermediaries. These two factors combined with the lack of any kind of relationship lead to free riding. A commons based approach would focus on music not as a commodity but as a relationship and community. A commons based approach would offer fans a means to pay artists directly and know that their support was going directly to the artist.

The cost of implementing and enforcing the current laws as expressed in things like the DMCA are huge. Digital rights management, content ID systems, digital locks, take down notices, suing fans, and gazillions of lawyers have not been enough. Instead of incentivizing creative works these laws and technology practices curb innovation, creativity, and freedom of expression. What if the money currently spent trying to enforce DMCA was instead spent on commons based models that help artists earn a livelihood?

But just how would a commons-based model provide a livelihood for artists? There are many ways and I urge more serious experimentation and thought around this. I acknowledge it’s not simple as the commons operates in a way distinctly different from the current free market approach. So focusing solely on sales and revenue forces a round commons based approach to fit into a square hole.

The open business models case studies I’ve been working on include three case studies related to music — Amanda Palmer, Jonathan Mann, and Tribe of Noise. All three have created a commons-based model that makes extensive use of Creative Commons while still generating a means of livelihood.

Amanda Palmer has mastered the Art of Asking. She releases all her music and writing under Creative Commons is a model for how commons based music involves community engagement. She’s blazed a trail exploring alternative means of earning a livelihood including passing a hat, crowdfunding through Kickstarter, and Patreon. She has over 7,000 patrons on Patreon who are willing to fund her creation of new songs, film clips/music videos, long-form writing, and more random, unpredictable art-things at over $30,000 per “thing”. She creates about one “thing” per month.

Tribe of Noise is a music platform that bridges both the commons and the commercial. Tribe of Noise helps musicians generate awareness and interest in their music by providing a community platform where they can upload their Creative Commons licensed music. Their platform also includes Noise PRO where musicians can upload music that could lead to a music deal secured by Tribe of Noise.

Let me also say that I’m not the only one imagining commons-based models for music.

The Berklee Institute for Creative Entrepreneurship recently launched the Open Music Initiative with a mission to: “Promote and advance the development of open source standards and innovation related to music to help assure proper compensation for all creators, performers and rights holders of music.”

I’m heartened to see the breadth of engagement underway by so many seeking to come up with a new model for the music industry. I’m hopeful that some of these efforts will arrive at a commons-based model for music that acts in the collective interests of the artist, the music community, and the public. I think everyone wants musicians to earn a livelihood.